Features » December 17, 2013

Stealing Pennies from Chileros

Sin Fronteras’ Marentes wants to start a movement for 'oppression-free' food, which would mean, in part, an increase in farmworker wages.

In the early morning darkness, Susana Lopez, backpack slung over her shoulder, heads off to a stretch of discount stores on El Paso Street, one of the main gathering places for farmworkers in El Paso, Texas. Here she joins dozens of other exhausted laborers who woke up at 2 a.m. in the hope of being hired by a contratista, the contractors who provide labor for the region’s farms. Some of the workers pick up a pastry at the bakery half a block away; others grab a burrito from a sidewalk stand. They take their breakfast and sit on a curb or lean against a wall of the Payless ShoeSource and wait. It’s a life of uncertainty. “You never know if there’s gonna be work,” Isidro Mancha, 63, who was born and raised in Albuquerque, tells me.“[You] work with different contratistas almost every day.”

On this late September day, Lopez only has to wait a half an hour before getting picked to hop into a contratista’s van bound for a green chile field in Deming, New Mexico, 119 miles away. On other days she has waited as long as an hour and a half. Advocates and workers say contratistas choose people they know—those who work fast and, especially, those who don’t complain. Workers call the system, “Tú sí, tú no.” “You yes, you no.”

Sometimes Lopez gets lucky and gets work in Las Cruces, an easy 45-minute drive, but today the trip takes nearly three hours each way. Once in Deming, she and her companions wait in the van or stand at the top of the chile rows, anxious to get started. It will be another 30 minutes before the contratista finally signals that it is light enough to work. Then it is nonstop movement.

By the time Lopez gets back to El Paso that night, she’ll have spent 13 hours just to get paid $47 for six hours of work. And while it’s legal for the contratista not to pay her for those hours spent waiting on El Paso Street and traveling to and from the fields, I find that he may have broken the law in several other ways to keep her day’s pay that small. For New Mexico’s chile pickers, I soon discover, wage theft is as common as sore backs.

Lopez’s pay is too low to afford an apartment, so she stays at a shelter in El Paso run by a farmworker advocacy group, the Sin Fronteras Organizing Project. It houses up to 125 laborers, many of whom have some type of legal status. All of those I spoke with were legal permanent residents, and several were U.S. citizens. To call the shelter bare bones would be generous. Lopez and several other women share a tiny room next to the reception area that also houses a water fountain; the men sleep nearby in the large main room. There are no beds or cots; everyone sleeps on blankets or thin mattresses placed right on the linoleum floor. The shelter is crowded, often noisy, and there’s no privacy. With only a few small windows, the air quickly gets stale. But it’s free. “I live here out of necessity,” says Lopez. “If I had an apartment, I couldn’t send money to my family”—a 6-year-old daughter and two ailing parents right across the border in Ciudad Juárez.

When I arrive at the chile field with Lopez at dawn on a late September day, the air is surprisingly cool, although southern New Mexico is still seeing highs in the upper 80s. A faint smell of chiles hangs in the air. In the dark, I can barely make out the neat green rows that stretch out for acres. Green chiles grow low to the ground, so Lopez and the other workers kneel to harvest them, pushing buckets ahead of them as they scoot forward on their knees. The plants are wet with early-morning dew, and workers’ clothing quickly becomes covered in mud.

“You get all dirty,” says Eduardo Martinez, 46, who picks chiles to support a wife and two children back in Ciudad Juárez.“You’re like a pig.”

Each time Lopez fills a bucket, which holds about 20 pounds, she hoists it onto a shoulder and hurries to the large crates where she’ll deposit her chiles. Workers are paid piece rate, and most New Mexico farmers were paying 85¢ a bucket for green chiles this year. (“You wanna make money, you gotta move your fingers quick,” says José Valentes, a slight man of 65 who’s been working the fields for almost 50 years.) Every time Lopez dumps her bucket, a small plastic token, a ficha, is tossed in; she tucks it in a front pocket and hurries back to her row to continue picking.

In the cool of the early morning, the crew of about 60 workers moves quickly down the rows, rushing back and forth to the crates. Lopez, a big woman, is soon breathing heavily. As the day progresses, the temperature rises, hitting 88 degrees. Exhaustion kicks in, and everyone slows down.

Lopez was told that the crew would work until noon that day. Then 12:30. Finally, at 1 p.m., she calls it quits. “I work until my body says, ‘Stop,’ ” she says. Her legs hurt, her arms hurt; she is spent. She holds out her right hand. It is shaking.

Soon, more workers leave the field. But the tractors keep coming, bringing more empty crates waiting to be filled. No one gets paid until the day’s quota is met, so Lopez waits. At around 2 p.m., there’s a long pause between tractors and she’s convinced she’ll finally get paid. Then another one pulls up. She shakes her head and mutters “pendejo,” a profane word for idiot. By the time she’s paid, she’s lost yet another hour. For filling 55 buckets, she’s paid $46.75. She worked 6.25 hours and waited another two.

She should have earned much more. With rare exceptions for very small farms, state law mandates that when workers are paid hourly—for example, when weeding a field or picking chiles—they must receive the New Mexico minimum wage of $7.50 an hour. If Lopez’s wait time is factored in, her hourly pay falls far below $7.50. That means that, in effect, her wages were stolen.

According to the U.S. Department of Agriculture, New Mexico ranked first in the nation in acreage in 2012, with nearly 10,000 acres planted and 78,000 tons of chiles harvested. That crop was valued at $65 million, but the true market value of those New Mexican chiles—when they are used in restaurants, sold in stores or made into salsas—was estimated at $400 million in 2012 by the New Mexico Chile Association (NMCA), a group comprised of farmers and processors.

But the crop’s value goes beyond dollars and cents. Carlos Marentes, director of Sin Fronteras, calls the green chile New Mexico’s “sacred cow.” That’s no exaggeration. Some New Mexicans have a separate freezer just for their chiles, and chile festivals abound across the state. But the popularity of green chiles has spread beyond New Mexico’s borders. A survey released in July by USA Today named green chile sauce America’s best iconic food. According to NMCA, green chiles from New Mexico are now sold across the country in supermarkets such as Albertsons, Whole Foods, Kroger and Walmart. They are a much-touted ingredient in salsas and sauces made by processors such as Bueno Foods, Santa Fe Olé, Cervantes and Border Products.

Little of these profits reach los chileros—the chile pickers—themselves. According to a May 2012 report from the Bureau of Labor Statistics, farmworkers nationally earned an average of $17,000 to $26,000 a year. But a 2012 survey by the New Mexico Center for Law and Poverty (NMCLP) of 253 farmworkers—many of whom stay at Sin Fronteras, and most of whom pick chiles—lists their average household incomes at less than $9,000, well below the federal poverty line.

Wage theft is a piece of that picture. Two-thirds of the field workers surveyed by NMCLP reported some form of illegal underpayment that year.

That theft is perpetrated in several ways. The most common, according to María Martínez Sánchez, an attorney at NMCLP, is for the contratista or the farmer to falsify workers’ daily wage receipts. State and federal labor laws mandate that workers must earn at least minimum wage, even when being paid piece rate. But, Martínez Sánchez explains, if a worker doesn’t fill enough buckets to earn minimum wage, the contratista or the farmer will doctor the hours so it looks as if a worker did—a practice called “shorting hours.”

The workers I spoke with interacted exclusively with contratistas, and it is unclear to what extent farmers were involved in pay decisions. None of the half-dozen contratistas and farmers I reached out to were willing to share details. But Jim Knoepp, deputy legal director of the Southern Poverty Law Center, explains that farmers are considered joint employers and so should be held accountable for infractions by the contratista.

For several days, I tracked the wages of 16 workers living at the Sin Fronteras shelter. When they had receipts— handwritten on forms issued by the contratista—the receipts almost always showed an hourly rate that exceeded both federal and state minimum wages. On paper, wages ranged as high as $14.72 an hour. However, when I did the math using the actual number of hours the workers reported, their true hourly rates ranged from $3.97 to $12.92. Two-thirds of the time, they didn’t earn the state minimum wage of $7.50.

Take César Rivera (not his real name), a slight man of 72 from Coahuila, Mexico, who walks with the stoop of someone who has worked the fields most of his life. On September 30, Rivera told me he’d worked for seven hours, yet his receipt for the day said he’d worked four. That was the difference between a supposed wage of $8.50 an hour and a real hourly wage of $4.86 an hour. During five separate trips to the fields, I confirmed firsthand that workers like Rivera often worked more hours than were recorded on their receipts.

Even when hours aren’t shorted, workers are rarely paid for the entire workday. As was the case with Lopez, workers are routinely forced to wait in the fields, off the clock. And that’s illegal, says Sarah Rich, an attorney at Texas Rio Grande Legal Aid. “There’s a [federal] law called the ‘Portal-to-Portal Act,’ ” Rich explains. “Once they get to the farm and they’re being told to wait, then they’re basically there for the employer’s benefit,” and the law says they should get paid for that time. Yet the NMCLP survey found that 95 percent of workers had never been paid for the time they spent waiting for work to begin. And, according to Martínez Sánchez, the NMCLP attorney, the Portal-to-Portal Act also entitles workers to compensation for time spent waiting to be paid. When I took into account wait times in the field, the workers I tracked received less than minimum wage three-quarters of the time, and hourly rates dropped as low as $3.78.

Wage theft also takes place through the routine violation of the New Mexico’s minimum wage law of $7.50 an hour. Farmers and contratistas alike that I spoke with seemed to believe, erroneously, that they were exempt from paying the state’s higher hourly rate, and had to pay only the lower federal rate of $7.25. Even Connie Leyva, bureau chief of the Department of Workforce Solutions (DWS) in Albuquerque, the office that enforces New Mexico’s wage and hour laws, got it wrong. When asked about the minimum wage for farmworkers, she replied, “As far as we’re concerned, it’s $7.25 an hour.”

These stolen wages may only mean pennies and dollars a day, but they soon add up. While it varies greatly, a typical chilero might work seven hours a day, five days a week, for 12 weeks during the harvest.That’s $105 stolen perseason for each worker who’s paid $7.25 an hour instead of $7.50. Factor in a half hour of unpaid waiting time before and after each shift, a conservative estimate, and that’s another $450 stolen per worker each season. A slower picker whose contratista alters his receipts—by cutting as many as 3.5 working hours a day to make it appear he’s earning minimum wage—could be shorted by as much as $1,580 in a season. And in New Mexico, wage underpayment is considered a criminal misdemeanor, and could mean jail time for the employer.

So do the processors and salsa manufacturers who brag about using New Mexico chiles know about the prevalence of wage theft in the fields? Bueno Foods failed to return three phone calls from In These Times, and Border Products was unable to comment before the deadline. But Jim Wrench, owner of Santa Fe Olé, a smaller salsa-maker that uses only New Mexico chiles, said that he doesn’t check that his suppliers pay the pickers properly. “It’s their business,” he says.“I don’t see how it’s my role.”

However, Arian Gonzales, president of Cervantes Food Products in Albuquerque, which markets a line of salsas that use only New Mexican green and red chiles, says, “To us, it’s very important to make sure employees are paid properly. … Our suppliers go through a very stringent approval process. There are a number of systems in place to insure that farmworkers are getting what they’re due.” She says she’s made arrangements to visit her growers’ fields in order to both visually inspect the ingredients and talk to the workers.

Recently, after pressure from NMCLP attorney Martínez Sánchez, DWS sent an email to its employees clarifying that farmworkers, with few exceptions, should be paid a minimum wage of $7.50 an hour. I asked Lopez what another $7 or $8 a week would mean to her. “I could buy some food for myself,” she told me. “Or those soups that are 10 for a dollar—I could buy them and send them to my daughter in Juarez.” Even more significantly, the DWS memo stipulated that workers are to be paid for their wait time. That alone could increase a field worker’s pay by as much as $15 a day. Yet it’s not certain that such directives have reached contratistas in the fields. In response to queries, Joy Forehand, deputy cabinet secretary at DWS, wrote, “We are working on outreach and communication to go out to employers, including growers and labor contractors.”

Dino Cervantes, president of the chile growers group, believes there’s a simple solution to wage disputes: Workers should talk to their bosses. “Probably just a phone call will solve the problem,” he said. This seems willfully naïve. “[Workers] are not willing to complain,” Rich says. “Their lives are very tenuous. They don’t want to cut off any access to work and they don’t want to be blackballed, so they just put up with things.” Several chileros told me, “If I complain, I won’t get hired again.”

Their fears are not unfounded.

Lopez told me about a day in mid-June when she and 17 other workers were hired to weed a chile field in Deming. They were told they’d work eight hours and would be paid $60. At noon, the contratista arrived in the field and, without any explanation, told all the workers from El Paso to leave. “They gave us $25 or $30,” Lopez says, and that was it.

The workers took the money, but their anger mounted on the ride back to El Paso, and they told their story to Alicia Marentes, director of social services at Sin Fronteras. She asked Lopez for a list of the affected workers and called the New Mexico Legal Aid office in Las Cruces to file a complaint.

Afterward, Lopez says, she and the other pickers were blacklisted from getting work with that contratista. When they asked the contratista why she wouldn’t hire them, she said, “Because you tried to get me in trouble with Legal Aid,” Lopez reports.

Meanwhile, Lopez grew frustrated by the lack of progress at Legal Aid. The frustration appears to be on both sides. Legal Aid’s Nena Gutierrez, who took the complaint, says she cannot comment on the status of specific cases except to say that all are taken “very seriously,” but notes that only 50 percent of her time is devoted to farmworker cases, and that while she attempts to contact all of her clients, there are “accessibility issues we face due to our farmworker’s mobility in and out of El Paso (and all around the state for that matter).” Rich, from the Texas Rio Grande Legal Aid, agrees. “Clients are very mobile … you may meet them once or twice,” she says. She adds that workers sometimes come to complain without bringing hour logs or other necessary information, in which case, “We can’t do anything.”

Workers also have the option of taking complaints to the DOL or New Mexico’s DWS. But unfortunately, DWS policy may also be inhibiting workers from coming forward. Before the enforcement agency will accept a complaint, a worker must demand payment from her employer. Given the fear of retaliation, that rarely happens.

Both the federal Department of Labor and New Mexico’s DWS are ridiculously understaffed. The DOL has eight agents to cover wage theft claims in a massive land area, including all of southern New Mexico and west Texas counties. DWS has eight agents in its wage-and-hour unit to investigate complaints across the state. “I would imagine that eight investigators in either office is insufficient,” says Martínez Sánchez. “But it comes down to funding and what federal and state priorities are.”

Wage theft, of course, doesn’t only occur among chile workers. “It’s been happening for decades in all kinds of farm work,” says Knoepp. It’s also prevalent in other low-wage jobs occupied by immigrants. According to a study by Somos Un Pueblo Unido, an advocacy organization in Santa Fe, almost 25 percent of immigrant workers in New Mexico are subjected to wage theft. That report likewise found that workers were reluctant to complain because they feared retaliation.

Sin Fronteras’ Marentes wants to start a movement for “oppression-free” food, which would mean, in part, an increase in farmworker wages. That would raise the cost of food—an increase that would almost certainly be passed onto consumers. Marentes hasn’t done the math on how much oppression-free chiles would cost, but a study by Philip Martin, a labor economist at the University of California, Davis, is informative. According to the USDA, U.S. farmworkers average $10.19 an hour—significantly more than chileros are getting. Martin found that paying farmworkers $14.10 an hour would lift them above the federal poverty line. The resulting increase in grocery costs for a typical American household? About $17 a year.

There's a lot of info out there now about wage theft and it's easy to find. Side note - wage theft is a popular pastime of the ultra rich, CEOs, some big corps, and those with stock portfolios who aren't concerned with social justice.